LEGISLATING FOOD SAFETY: A BRIEF REVIEW OF HR 2749

Christopher Reed

ccSCOOP Commentary

One of several food safety bills on the horizon, HR 2749 proposes to increase substantially the powers of the Food and Drug Administration (FDA) and limit existing judicial checks on the agency’s enforcement work. While there is general agreement that some provisions are potentially beneficial, many farm and food advocacy groups have registered concerns about the imprecise language of the FDA’s expanded powers and their potentially disproportionate impact on small farms and value-added food producers. 

As part of the broader movement toward decentralization and diversity, the nation’s small-scale producers are increasingly seen as part of the solution to the interconnected food security and food safety problems of the U.S. The Hudson Valley—and Columbia County in particular—is replete with such operations. These enterprises, it should be noted, already function under considerable certification, inspection, and record-keeping requirements.

Of particular concern to small farm advocates is HR 2749’s imposition of uniform $500 annual inspection fees to be required of any facility regardless of size and corresponding reporting and tracking requirements. With some justification, HR 2749 has been called NAIS for fruits and vegetables, referring to the already fiercely contested National Animal Identification System. The FDA would also be authorized to regulate farming and harvesting practices in the name of food safety. While the continued existence of concentrated animal feeding operations (CAFOs) remains off the table as a topic for general discussion, the House bill focuses on wildlife as a threat to food safety. Language in the current bill could be construed in a way that undermines biodiversity and accepted conservation practices in the name of a sanitized farmscape.

In the negotiations leading to the House votes, the initially strong objections of the big commodity and livestock lobbies led to concessions on record-keeping requirements, antibiotic use, and farming standards for grain producers. The so-called Kaptur-Farr Amendment, although enjoying broad support among sustainable agriculture groups, did not achieve the same success in influencing the final version. The provisions of this amendment include:

• establishing a sliding scale for facility registration fees
• targeting high-risk problems (for example, bagged salad mixes rather than whole plants)
• requiring coordination between the FDA and the USDA and, where organic farming is affected, the USDA’s National Organic Program
• protecting wildlife and bio-diversity by emphasizing animals of significant risk
• extending direct marketing exceptions to include cafeterias, catering, and other prepared venues
• exempting “identity-preserved” marketing when the link between farm and the ultimate consumer is unbroken
• allowing farmers who sell their own products and do not process them on-farm to retain existing paper record keeping rather than be required to convert to electronic records
• focusing safety standards on uncomposted manure and biosolids
• basing directives on the “best possible scientific information” incorporating socio-economic and environmental impacts

The first HR 2749 vote took place on Wednesday, July 28. The bill failed by just a few votes to reach the needed two-thirds majority. The higher threshold was in exchange for more limited opportunities to debate and offer amendments. Interestingly, the House Rules Committee then authorized a second vote the following day, this time requiring only a simple majority while retaining the original “fast track” limits on more extended discussion and amendments. The measure, with few modifications, now easily passed 283 to 142, still short of two-thirds had the original rules been retained.

In both instances, Scott Murphy (D-20) voted for HR 2749, while only three members of the New York delegation, all Democrats, voted No.  One of the No voters was fellow Hudson Valley Representative Maurice Hinchey (D-22), in fact one of the seven co-sponsors of the Kaptur-Farr Amendment. Given overwhelming opposition to an unamended HR 2749 among constituents calling Murphy’s Hudson office, one wonders about his rationale.

In fairness, some respected organizations such as Food and Water Watch and Consumers Union supported the fast-track version. Others, including the Weston A. Price Foundation, the Pennsylvania Association for Sustainable Agriculture, and the National Sustainable Agriculture Coalition worked hard for explicit protections for smaller farms which didn’t make it into the current version. The split within the progressive agricultural community would seem to hinge on one’s degree of optimism about the FDA’s handling of its new regulatory authority over small farms.

It is, therefore, too early to tell whether Scott Murphy’s vote can be chalked up as a rookie error or something more deeply patterned. Where the interests of small farms are concerned—one of Murphy’s major constituents after all—it may paradoxically be the Republicans’ ideology of less regulation is more in tune with the bottom-up challenge to the industrial model in agriculture. Republicans voted 122 to 54 against HR 2749 (joined by 20 Democrats including the three from New York). Regulating farms and food production enterprises across a wide spectrum of scale and practices is a very different proposition from regulating cement plants, for example. 

Meanwhile, wariness and hyper-vigilance about investing so much new power in the FDA is justified given the agency’s past performance. Small and sustainable farm advocates are keenly aware of the FDA’s approvals of such questionable food additives as high fructose corn syrup, hydrogenated oils, and genetically modified organisms. With such recent examples as the British government’s response to mad cow and hoof-and-mouth disease, the potential for the ruthless application of state power is never far from consciousness.

Further opportunities to shape the legislation will present themselves as early as next month, when the Senate, now preoccupied with health care, takes up its version of HR 2749.

Christopher Reed has worked in the public, non-for-profit, and private sectors to strengthen regional and statewide food systems. He is President of Friends of Hudson.